KUALA LUMPUR (Nov 24): The addendum order that allows Datuk Seri Najib Razak to serve the remainder of his jail sentence under house arrest is not an outright "pardon", but rather, a "respite", the High Court heard on Monday.
Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that the Pardons Board's deliberation is not required for such a 'relief'.
"Our position is that it is not an outright pardon, it falls under respite... When the King exercises powers of pardon, it is on the advice of the Pardons Board. But reprieve and respite is [different].
"The nature of reprieve or respite is not to extinguish guilt or [subsequent] punishment. It is merely melegakan hukuman. It doesn't call for the intervention of the Pardons Board," Shafee argued.
He added that the respite merely constitutes the manner in which the punishment would be carried out, "without disturbing the underlying conviction or sentence".
To High Court judge Alice Loke's query, Shafee said that the addendum fell under "respite".
Loke: What you are saying is that if the [King] is of the view that he can, and ought to give order of respite, today he can [issue the order]?
Shafee: Yes, in fact he can.
Loke: If it is a pardon, then he will have to preside over the Pardons Board meeting. But anything that falls under "respite", he is not bound by it?
Shafee: Correct. [House arrest] are reliefs. It is not a pardon. If today the addendum is enforced, is there a further addendum? No. It's just a relief for he [who] is still in prison.
Shafee also argued that in drafting the law, the legislation would not have arbitrarily chosen to use these three different words, if they were redundant.
He added that every minutiae cannot be brought before the Pardons Board which only meets a handful of times annually. He said that since 1964, the Federal Boards Pardon has only met 61 times and may not accommodate urgent matters.
"Justice is finished. Now is mercy," Shafee said, adding that it has to be exercised judiciously.
Monday's hearing goes back to the Pardons Board’s decision in early 2024, which slashed Najib's jail time to six years and reduced his fine to RM50 million (please see graphic).
The High Court is currently hearing arguments on the legitimacy of a supplementary order by the then-King to serve the updated sentence under house arrest.
‘King floats over the Pardons Board’
Shafee also argued that "99% of the lawyers" in Malaysia misunderstood that the King is not part of the Pardons Board, but rather, merely presides over it.
"[The King] floats over the advisory board. He receives the advice, says 'thanks very much for advice, let me consider', then walks away.
"The question is what is wrong with that," he said drawing parallels to the presiding judge in any court case.
"We submit, then [you, the judge] decide, and you give an extra prayer which you feel may be necessary. You preside, rather than chair, at our meeting," he said.
Shafee also argued that Malaysian courts have always held that pardons are an absolute discretion of the monarch, just like the awarding of honours.
"The power of pardons has been undiluted since 1957," he said.
Quoting excerpts of the Jan 29, 2024 Pardons Board meeting minutes, Shafee told the court that in Najib's case, the King did take the Pardons Board's recommendation into consideration.
Shafee said that the King initially wanted to give a full pardon, but that did not get a majority vote from the Pardons Board.
Loke has set Jan 5, 2026 to deliver her decision.